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Case 3:09-cv-02137-N Document 36 Filed 03/24/11 Page 1 of 18 PageID 586

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

APRIL GILLILAND, CHARLIE §


PATEL, JAINE LONDON, DENA §
MCDONALD, JEFF YOUNGBLOOD §
and CAROLYN THOMI, §
Plaintiffs, § CIVIL ACTION NO 3:09-CV-2137-N
v. § ECF
§
CITY OF DALLAS, §
Defendant. §

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS

Defendant, City of Dallas, (hereinafter, the “City”) files this, its First Amended Answer

and Affirmative Defenses to the First Amended Complaint for Declaratory and Injunctive Relief

(hereinafter, the “Complaint”), ECF Doc. No. 18, filed by Plaintiffs in this cause and

Defendant’s Counterclaims.

I. Answer

1. The City admits that Plaintiffs are attempting, in this case, to challenge a City of

Dallas ordinance. The City denies the remaining allegations contained in paragraph 1 of the

Complaint.

2. The City admits the allegations contained in paragraph 2 of the Complaint.

3. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegation, contained in paragraph 3 of the Complaint, that Plaintiffs are

small business owners, and, accordingly, denies that allegation. The City denies the remaining

allegations contained in paragraph 3 of the Complaint.

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 1
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4. The City denies the allegations contained in paragraph 4 of the Complaint.

5. The City admits the allegations contained in the first sentence of paragraph 5 of

the Complaint. The City denies the remaining allegations contained in paragraph 5 of the

Complaint.

6. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in paragraph 6 of the Complaint and, accordingly,

denies those allegations.

7. The City denies the allegations contained in paragraph 7 of the Complaint.

8. The City denies the allegations contained in the first and third sentences of

paragraph 8 of the Complaint. The City does not have information sufficient to allow it to form

a belief as to the truth or falsity of the allegations contained in the second sentence of paragraph

8 of the Complaint and, accordingly, denies those allegations.

9. The City admits that Plaintiffs are attempting, in this civil action, to challenge

City of Dallas Ordinance No. 27253, specifically that portion codified as Dallas City Code §§

51A-7.305. The remaining allegations contained in paragraph 9 of the Complaint are denied.

10. The City admits that Plaintiffs are attempting, in this lawsuit, to allege a claim for

violation of their First Amendment rights and that, in the lawsuit, Plaintiffs are attempting to

obtain injunctive and declaratory relief, as well as nominal damages as their remedy for that

alleged violation of their rights. The City denies the remaining allegations contained in

paragraph 10 of the Complaint and specifically denies that Plaintiffs have stated a valid cause of

action or are entitled to the relief sought or any relief whatsoever.

11. To the extent that Plaintiffs have: (a) stated a claim upon which relief may be

granted; (b) standing to bring these claims; and (c) timely filed this cause of action, the City

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 2
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admits the allegation contained in paragraph 11 of the Complaint that this Court has jurisdiction

pursuant to 28 U.S.C. §§ 1331 and 1343. The City denies all remaining allegations contained in

paragraph 11 of the Complaint.

12. To the extent that Plaintiffs have: (a) stated a claim upon which relief may be

granted; (b) standing to bring these claims; and (c) timely filed this cause of action, the City

admits the allegation contained in paragraph 12 of the Complaint that venue is appropriate

pursuant to 28 U.S.C. § 1391. The City denies the remaining allegations contained in paragraph

12 of the Complaint.

13. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in paragraph 13 of the Complaint and, accordingly,

denies those allegations.

14. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in paragraph 14 of the Complaint and, accordingly,

denies those allegations.

15. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in paragraph 15 of the Complaint and, accordingly,

denies those allegations.

16. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in paragraph 16 of the Complaint and, accordingly,

denies those allegations.

17. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in paragraph 17 of the Complaint and, accordingly,

denies those allegations.

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 3
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18. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in paragraph 18 of the Complaint and, accordingly,

denies those allegations.

19. The City admits the allegations contained in paragraph 19 of the Complaint.

20. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in paragraph 20 of the Complaint and, accordingly,

denies those allegations.

21. The City denies the allegations contained in the last sentence of paragraph 21 of

the Complaint. The City does not have information sufficient to allow it to form a belief as to

the truth or falsity of the remaining allegations contained in paragraph 21 of the Complaint and,

accordingly, denies those allegations.

22. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in the first, second, third, and fourth sentences of

paragraph 22 of the Complaint and, accordingly, denies those allegations. The City denies the

remaining allegations contained in paragraph 22 of the Complaint.

23. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in the first, second, and third sentences of paragraph

23 of the Complaint and, accordingly, denies those allegations. The City denies the remaining

allegations contained in paragraph 23 of the Complaint.

24. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in the first and second sentences of paragraph 24 of

the Complaint and, accordingly, denies those allegations. The City denies the remaining

allegations contained in paragraph 24 of the Complaint.

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 4
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25. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in the first and second sentences of paragraph 25 of

the Complaint and, accordingly, denies those allegations. The City denies the remaining

allegations contained in paragraph 25 of the Complaint.

26. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in the first, second, third, and fourth sentences of

paragraph 26 of the Complaint and, accordingly, denies those allegations. The City denies the

remaining allegations contained in paragraph 26 of the Complaint.

27. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in the first and second sentences of paragraph 27 of

the Complaint and, accordingly, denies those allegations. The City denies the remaining

allegations contained in paragraph 27 of the Complaint.

28. The City admits that City of Dallas Ordinance 27253 (hereinafter, the

“Ordinance”) was passed on June 25, 2008 and that it amended Sections 51A-7.205 and 51A-

7.305 of the Dallas City Code. The remaining allegations contained in paragraph 28 of the

Complaint are denied.

29. The City denies the allegations contained in paragraph 29 of the Complaint.

30. The City admits that upon conviction, a person violating a provision of the

Ordinance may be fined an amount not to exceed $2,000. The remaining allegations contained

in paragraph 30 of the Complaint are denied.

31. The City admits that shortly after passage of the Ordinance, the Dallas Morning

News reported that Dallas Mayor Pro Tem Dwaine Caraway stated that “These signs just trash

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 5
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up the community.” The City denies the remaining allegations contained in paragraph 31 of the

Complaint.

32. The City admits the allegations contained in paragraph 32 of the Complaint.

33. The City admits that it has issued at least 115 warnings or citations for violations

of various provisions of the City’s sign ordinances, including but not limited to violations

relating to signs attached to windows or buildings. The City denies the remaining allegations

contained in paragraph 33 of the Complaint.

34. The City admits the allegations contained in the first two sentences of paragraph

34 of the Complaint. The City denies the remaining allegations contained in paragraph 34 of the

Complaint.

35. The City admits that Lakeside Cleaners’ Knox Avenue location was visited by

City inspectors. The City does not have information sufficient to allow it to form a belief as to

the truth or falsity of the remaining allegations contained in the first sentence of paragraph 35 of

the Complaint nor of allegations contained in the second and fifth sentences of paragraph 35 of

the Complaint and, accordingly, denies those allegations. The City denies the remaining

allegations contained in paragraph 35 of the Complaint.

36. The City admits that TK Scrubs’ Plano Road location was visited by City

inspectors. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the remaining allegations contained in the first sentence of paragraph 36 of the

Complaint nor of the allegations contained in the second and fifth sentences of paragraph 36 of

the Complaint and, accordingly, denies those allegations. The City denies the remaining

allegations contained in paragraph 36 of the Complaint.

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 6
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37. The City admits that AAA Vacuum was visited by a city inspector at its Walnut

Hill Lane location and that on December 14, 2009 AAA Vacuum was issued a citation for

violation of the Sign Ordinance. The remaining allegations contained in paragraph 27 of the

Complaint are denied.

38. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in paragraph 38 of the Complaint and, accordingly,

denies those allegations.

39. The City denies the allegations contained in paragraph 39 of the Complaint.

40. In response to paragraph 40 of the Complaint, which is merely a reallegation and

incorporation by reference of the allegations set forth in paragraphs 1 through 39 of the

Complaint, the City reanswers and incorporates by reference its answers set forth in paragraphs 1

through 39 above. To the extent that any further response is required, the City denies the

remaining allegations contained in paragraph 40 of the Complaint.

41. The City denies the allegations contained in paragraph 41 of the Complaint.

42. The City denies the allegations contained in paragraph 42 of the Complaint.

43. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in the first sentence of paragraph 43 of the Complaint

and, accordingly, denies those allegations. The City denies the remaining allegations contained

in paragraph 43 of the Complaint.

44. The City denies the allegations contained in paragraph 44 of the Complaint.

45. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in the second and third sentences of paragraph 45 and,

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 7
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accordingly, denies those allegations. The City denies the remaining allegations contained in

paragraph 45 of the Complaint.

46. In response to paragraph 46 of the Complaint, which is merely a reallegation and

incorporation by reference of the allegations set forth in paragraphs 1 through 45 of the

Complaint, the City reanswers and incorporates by reference its answers set forth in paragraphs 1

through 45 above. To the extent that any further response is required, the City denies the

remaining allegations contained in paragraph 46 of the Complaint.

47. The City denies the allegations contained in paragraph 47 of the Complaint.

48. The City does not have information sufficient to allow it to form a belief as to the

truth or falsity of the allegations contained in the first sentence of paragraph 48 of the Complaint

and, accordingly, denies those allegations. The City denies the remaining allegations contained

in paragraph 48 of the Complaint.

49. The City denies the allegations contained in paragraph 49 of the Complaint.

50. The City denies the allegations contained in paragraph 50 of the Complaint.

51. The City denies the allegations contained in paragraph 51 of the Complaint.

52. The City denies the allegations contained in paragraph 52 of the Complaint.

53. The City denies the allegations contained in the final and unnumbered paragraph

of the Complaint, which is captioned “REQUEST FOR RELIEF,” and begins, “WHEREFORE,

Plaintiffs respectfully request relief . . .”, including all allegations contained in its numbered

subparagraphs 1 through 5 and specifically denies that Plaintiffs are entitled to the relief therein

requested or to any relief whatsoever.

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 8
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II. Affirmative Defenses

54. Plaintiffs have failed to state a claim upon which relief may be granted.

55. The City affirmatively invokes the defense of governmental immunity from suit

and liability and would show that it is a municipal corporation organized and existing as a

political subdivision and a unit of government of the State of Texas and a home-rule city under

the Home-Rule Amendment to the Constitution of the State of Texas and the provisions

applicable to Home-Rule Municipalities as set forth in the Local Government Code of the State

of Texas.

56. Plaintiffs do not have standing to assert the claims that are asserted in this lawsuit.

Furthermore, the sellers of signage do not have standing to assert the First Amendment rights of

those businesses displaying the signs.

57. To the extent that Plaintiffs’ cause of action falls outside the applicable statute of

limitations, the City affirmatively pleads that this action is barred by the applicable statute of

limitations.

58. To the extent Plaintiffs have failed to timely exhaust all administrative remedies,

the City affirmatively pleads that Plaintiffs have failed to meet the prerequisites and conditions

precedent for filing this civil action.

59. The City affirmatively pleads that Ordinance No. 27253 is content neutral, is
narrowly tailored to and does directly and materially advance a compelling, significant, and/or

substantial government interest, and leaves open ample alternative channels of communication of

information.

60. The City affirmatively pleads that its ordinances and actions are entitled to a

presumption of validity and that Plaintiffs have the extraordinary burden to show that no

controversial, debatable or issuable facts exist to support their validity.

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 9
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61. The City affirmatively pleads that all of its actions were consistent with city

ordinances and state and federal law, were supported by applicable law and evidence, were in all

things valid, legal and constitutional, and were not arbitrary, capricious, irrational, unreasonable

or an abuse of discretion.

62. The City affirmatively pleads that no deprivation of Plaintiffs’ rights occurred

with regard to the matters about which they complain.

63. The City affirmatively pleads that on the occasion in question, no unlawful or

constitutionally defective official policy or practice of the City was the actual or proximate cause

of any deprivation of Plaintiffs’ constitutional rights.

64. The City affirmatively pleads that Plaintiffs failed to mitigate damages.

65. The City affirmatively asserts the defense of unclean hands, in that upon

information and belief and subject to further discovery, Plaintiffs have violated the Ordinance at

issue and/or committed wrongful acts with regard to the subject matter of this civil action.

66. The City affirmatively asserts that inasmuch as Plaintiffs content that the

Ordinance is unconstitutional, both on its face and as applied, the Court should abate this

litigation until Plaintiffs have satisfied the notice and opportunity to intervene provisions of

Texas Civil Practice and Remedies Code Section 37.006(b) in favor of the Texas Attorney

General.

67. The City reserves the right to assert additional affirmative defenses to the extent

such are subsequently established during discovery.

III. Counterclaims

68. The City of Dallas, Defendant and Counterclaimant herein, is a home-rule

municipal corporation, incorporated and operating under the laws of the State of Texas.

69. Counterdefendant April Gilliland is an individual residing and operating a

business in Dallas County, Texas. Ms. Gilliland has control over the premises on which she is

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 10
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operating her business. No service of process is needed on Ms. Gilliland since she is a plaintiff

in this case.

70. Counterdefendant Charlie Patel is an individual residing and operating a business

in Dallas County, Texas. Mr. Patel has control over the premises on which he is operating his

business. No service of process is needed on Mr. Patel since he is a plaintiff in this case.

71. Counterdefendant Dena McDonald is an individual residing and doing business in

Dallas County, Texas. Ms. McDonald has control over the premises on which she is operating

her business. No service of process is needed on Ms. McDonald since she is a plaintiff in this

case.

72. Counterdefendant Carolyn Thomi is an individual residing and doing business in

Dallas County, Texas. Ms. Thomi has control over the premises on which she is operating her

business. No service of process is needed on Ms. Thomi since she is a plaintiff in this case.

73. Counterdefendant K&B Commercial Texas Ltd. is a Texas limited partnership

and the record owner of the commercial real property situated at 10207 North Central

Expressway, Dallas, Texas, which includes 10225 North Central Expressway in Dallas, Texas,

and may be served with process through its registered agent H. Craig Kinney, 8525 Ferndale

Road, Suite 204, Dallas, Texas 75238.

74. Counterdefendant Knox Park Village 07 A, LLC is a limited liability company, is

the record owner of the real property situated at 3001 Knox Street, Suite 104, Dallas, Texas, and

may be served with process through its registered agent Corporation Service Company dba CSC

- Lawyers Inc. 701 Brazos Street, Suite 1050 Austin, Texas 78701.

75. Counterdefendant McKinney Avenue Properties No. 2 Ltd., is the record owner of

the real property situated at 2705 McKinney Avenue, including 2715 McKinney Avenue Suite C

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 11
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Dallas, Texas 75204. McKinney Avenue Properties No. 2 Ltd. is a Texas limited partnership

and may be served with process through its registered agent Kasnetz Properties, LLC at the

following address: 2702 McKinney Avenue, Suite 200 Dallas, Texas 75204.

76. Counterdefendant James A. Loven, an individual, owns the commercial real

property situated at 9845 Walnut Hill Lane Dallas, Texas 75238. Mr. Loven maybe served with

process via certified mail at the following postal address: Post Office Box 809 Forney, Texas

75126.

A. Venue and Jurisdiction

77. Venue is proper in the Northern District of Texas in that the City’s cause of action

arose in this district. This Court has supplemental jurisdiction to preside over Defendant’s

counterclaims pursuant to 28 U.S.C. §1367 and Rules 13, 18-20, F.R.C.P. This Court also has

jurisdiction pursuant to Chapters 54 and 211 of the Texas Local Government Code. The

counterclaims asserted herein arise out of the same transaction and occurrence that is the subject

of the plaintiffs’ claims, do not require for their adjudication the presence of third parties of

whom the court cannot acquire jurisdiction and have questions of law or fact common to all

plaintiffs in the case.

B. Factual Basis of Counterclaims

78. In July 2008, the Dallas City Council adopted Ordinance No 27253, codified as

Chapter 51A Article VII (amended) of the Dallas City Code and commonly referred to as the

Sign Ordinance. While the function of Article VII is regulatory, its purpose is unquestionably to

serve and promote public health, safety and welfare. “[T]his article provides standards for the

erection and maintenance of private signs. All private signs not exempted as provided below

shall be erected and maintained in accordance with these standards. The general objectives of

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 12
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these standards are to promote health, safety, welfare, convenience and enjoyment of the public.”

Dallas City Code §51A-7.101.

79. The Sign Ordinance promotes public safety by mandating that signs do not

obstruct fire fighting or police surveillance §51A-7.101(a)(2) and do not create traffic hazards by

impeding any driver’s view of pedestrians, obstacles, other vehicles and safety signs §51A-7.101

(a)(3). The public policy rationale behind sign regulation seeks to ensure that signs may serve

their intended communication, information or advertising purpose and to promote the general

welfare by ensuring that persons exposed to signs are not so overwhelmed by the number of

messages presented that they cannot find the information they seek. §51A-7.101(b). Further

sign regulation serves to enhance the appearance and economic value of the landscape §51A-

7.101(c).

80. Violations of Dallas City Code Chapter 51A, Section 7.305 exist at each of the

properties (referred to below as “the Properties”) listed below for which each of the

Counterdefendants are liable for their respective properties.

81. Section 211.012(c) of the Texas Local Government Code authorizes a

municipality to bring a civil action for the enforcement of an ordinance that is adopted under

Subchapter A of Chapter 211 of the Code. The Sign Ordinance is an ordinance that is adopted

under Subchapter A of Chapter 211 of the Code. Therefore, Section 211.012(c) of the Code

applies to the Sign Ordinance. Similarly, Chapter 54 of the Code authorizes a municipality to

bring a civil action, including civil penalties, for the enforcement of an ordinance involving

zoning that provides for the use of land. The Sign Ordinance is an ordinance involving zoning

that provides for the use of land.

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 13
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82. The property commonly referred to as 10225 North Central Expressway in Dallas,

Texas, has the following legal description: Block 7293, Pt Lot 26 ACS 0.871 Central & Meadow

Pk (hereafter “Fast Signs Property”). The record property owner of this property is

Counterdefendant K&B Texas Commercial Ltd. The Fast Signs Property is operated and

controlled by Counterdefendant April Gilliland. The property, in its current usage and condition,

has signs exceeding the eight word limit in violation of 51A-7.305(c), has attached window signs

whose combined effective area exceeds 15% of the area of a window or glass door and has

attached window signs in the upper two-thirds of a window or glass door in violation of §51A-

7.305(d) of the Dallas City Code. Both the record property owner and the owner’s representative

with control over the premises are subject to injunctive relief and the imposition of civil

penalties.

83. The property commonly referred to as 3001 Knox Street, Suite 104 in Dallas,

Texas, has the following legal description: Cockrells Fairland, Block J/1534 Lot 1A ACS 2.0012

(hereafter “Lakeside Cleaners Property”). Counterdefendant Knox Park Village 07 A, LLC is

the record property owner of the Lakeside Cleaners Property. The Lakeside Cleaners Property is

operated and controlled by Charlie Patel who does business thereon as Lakeside Cleaners. The

property, in its current usage and condition, has signs exceeding the eight word limit in violation

of 51A-7.305(c), and has attached window signs in the upper two-thirds of a window or glass

door in violation of §51A-7.305(d) of the Dallas City Code. Both the record property owner and

the owner’s representative with control over the premises are subject to injunctive relief and the

imposition of civil penalties.

84. The property commonly referred to as 2715 McKinney Avenue, Suite C, Dallas,

Texas 75204, has the following legal description: City Block 2/955, Partial Lots 2 and 3, is

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 14
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owned by Counterdefendant McKinney Avenue Properties No. 2 Ltd. (hereafter “Tiki Trips

Property”). Counterdefendant Dena McDonald operates and controls the premises of the Tiki

Trips Property. The property, in its current usage and condition, has signs exceeding the eight

word limit in violation of 51A-7.305(c) of the Dallas City Code, and has attached window signs

in the upper two-thirds of a window or glass door in violation of §51A-7.305(d) of the Dallas

City Code. Both the record property owner and the owner’s representative with control over the

premises are subject to injunctive relief and the imposition of civil penalties.

85. The property commonly referred to as 9845 Walnut Hill Lane, Dallas, Texas, has

the following legal description: Lake North Center Blk 8081 Lt 3 in Dallas, Texas, is owned by

Counterdefendant James Loven (hereafter “the AAA Property”). Counterdefendant Carolyn

Thomi operates and controls the premises of the AAA Property. The property, in its current

usage and condition, has signs exceeding the eight word limit in violation of 51A-7.305(c) of the

Dallas City Code, and has attached window signs in the upper two-thirds of a window or glass

door in violation of §51A-7.305(d) of the Dallas City Code. Both the record property owner and

the owner’s representative with control over the premises are subject to injunctive relief and the

imposition of civil penalties.

86. The Lakeside Cleaners Property, the Fast Signs Property, the AAA Property, and

the Tiki Trips Property shall collectively be referred to herein as “the Properties”.

C. Causes of Action: Injunctive relief and civil penalties

87. Sections 54.017 and 211.012 of the Texas Local Government Code apply to the

Sign Ordinance, the former authorizes the recovery of civil penalties and the latter authorizes

injunctive relief for violations of the Sign Ordinance.

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FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 15
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a. First Claim for Injunctive Relief

88. Pursuant to Texas Local Government Code §211.012(c), the City requests

preliminary and permanent injunctive relief, and an order directing the Counterdefendants to

remedy the conditions of the Properties to bring them into compliance with the Dallas City Code.

b. Second Claim for Civil Penalties

89. The City also seeks civil penalties not to exceed $1,000 per day for each violation

of the Sign Ordinance pursuant to Texas Local Government Code §54.017. The Sign Ordinance

is an ordinance “for zoning that provides for the use of land.” Texas Local Government Code,

§54.012(3) Counterdefendants are jointly and severally liable to the City of Dallas for any

judgment for civil penalties award determined by this Court.

D. Procedural Standard for Counterclaims

90. The City of Dallas may bring a civil action seeking, inter alia, injunctive relief to

enjoin ongoing violations of its Code and to enforce its ordinances concerning buildings used in

violation of the Sign Ordinance. Texas Local Government Code, §211.012(c) Each of the

parties named as Counterdefendants herein, either own or are persons in control of real property

within the City that is being maintained in a condition and manner that is in violation of Dallas

City Ordinance No. 27253, and more specifically that portion codified as Dallas City Code

§51A-7.305. Violations of Chapter 51A may be prosecuted civilly and enforced through civil

court action as provided by state law. Dallas City Code, Chapter 51A-1.103(b).

91. Each third-party defendant is a record owner of their respective property and each

counterdefendant is a party in control of their respective property and operating a business in

violation of the Dallas City Code.

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92. The general objectives of the Sign Ordinance are “[t]o promote the safety of

persons and property by providing that signs (1) do not create a hazard due to collapse, fire,

collision, decay or abandonment; (2) do not obstruct fire fighting or police surveillance; and (3)

do not create traffic hazards by confusing or distracting motorists, or by impairing the driver's

ability to see pedestrians, obstacles, or other vehicles, or to ready traffic signs. Dallas City Code,

§ 51A-7.101(a).

IV. Prayer

Having answered and asserted affirmative defenses and counterclaims, the City prays that

Plaintiffs take nothing by this suit, that all relief requested by the Plaintiffs be denied, that the

City obtain preliminary and permanent injunctive relief to enjoin the illegal operation of the

businesses on the Properties in violation of the Dallas City Code, a civil penalty from each

Counterdefandant in the amount of $1,000.00 per day for each day that any of the Properties are

in violation of the Dallas City Code, that the City recover its costs of court and that it have such

other and further relief, at law or in equity, to which it may show itself justly entitled.

Respectfully Submitted,

THE CITY OF DALLAS

By: /s/ Christopher J. Caso____________


Christopher J. Caso
Senior Assistant City Attorney
Texas State Bar No. 03969230
Charles Estee
Assistant City Attorney
Texas State Bar No. 06673600
Dallas City Hall, Suite 7BN
1500 Marilla Street
Dallas, Texas 75201

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 17
Case 3:09-cv-02137-N Document 36 Filed 03/24/11 Page 18 of 18 PageID 603

Tel. (214) 670-3519


Fax (214) 670-0622
charles.estee@dallascityhall.com
chris.caso@dallascityhall.com

CERTIFICATE OF SERVICE

I hereby certify that on March 24, 2011, I electronically filed the foregoing

document with the clerk of the court for the U.S. District Court, Northern District of Texas, using

the electronic case filing system of the court. The electronic case filing system sent a “Notice of

Electronic Filing” to all counsel of record who have consented in writing to accept this Notice as

service of this document by electronic means.

Matthew R. Miller
Wesley Hottot
Institute for Justice Texas Chapter
816 Congress Avenue, Suite 960
Austin, TX 78701

William H. Mellor
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203

Richard L. Wynne, Jr.


Thompson & Knight LLP
1722 Routh St., Suite 1500
Dallas, TX 75201

/s/Christopher J. Caso___________________
Christopher J. Caso

DEFENDANT’S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO


FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
AND DEFENDANT’S COUNTERCLAIMS PAGE 18